The incident of Scott McIntyre’s sacking from his job as SBS soccer commentator for having criticised the ANZAC rituals around the country and the world has again sparked discussion on “freedom of speech” in Australia.
Monday’s Lateline’s program with Emma Alberici featured discussion between the Australian Human Rights Commission’s Freedom Commissioner Tim Wilson and Australian Lawyers Alliance’s Barrister and Solicitor Greg Barns.
When critics say that in Australia we have no right to free speech, they are literally correct. We do not, in the same way that the American citizen has, a “right to free speech” expressed in our Constitution, just as we have no similar “right to bear arms”.
However, we have something else, something that can be more powerful. In Australia, the High Court has decided that we have, arising out of our Constitution, an Implied Freedom of Political Communication, through which all Australian citizens are free to criticise government, its ministers and its policies.
Given that McIntyre’s tweets were critical of government actions in respect of ANZAC and its commemorations, he fulfils this criterion. He was criticising government. And for this criticism, the Constitution will provide him immunity from punishment, provided some essential criteria can be met.
Under the constitutionally implied freedom, any law that might punish us for criticising government or its ministers or its policies, or limit us to any extent in doing so, will be struck down by the High Court as being invalid. Moreover, while US citizens may contract out of their right to free speech in their employment contracts, we in Australia cannot do this.
In Australia we can only speak of the immunity being fettered in some way. That aspect is not in the hands of employers, but in the legislature and the courts. In other words, any law such as the public Service Act which purports to deprive an employee of the freedom to criticise government, albeit through a department’s interpretations of that act into the organisation’s policies, will be deemed invalid.
In the Australian context therefore, the Court will not deem valid any employment contract that purports to trump or deny the constitutional immunity. Also moot are any discussions predicated upon whether the author of the tweets did so anonymously, or in his own name.
In the McIntyre case, a critical element is whether he tweeted as a private citizen in his own time on this own device, or whether he tweeted while at work using his employer’s time and equipment. This can be put simply: was he speaking for his employer, or was he speaking for himself? Were his tweets published on behalf of his employer, SBS?
I have said that the Constitutionally Implied Freedom of Communication in Australia, works differently from the US Constitutional right to ‘freedom of speech”, and that in Australia, it cannot be spoken of as a “right” but as an “immunity” from punishment or detriment should a citizen criticise government, its ministers or its policies.
There is a very sound reason for this.
Our constitution sets the rules for our political processes and those rules are those of a representative democracy. The very integrity of such a representative democracy would be wounded, and rendered ineffective, were any person in the country to live in fear of punishment for expressing a political opinion, were it not for such an Implied Freedom. The reason we say it is “implied” is because the freedom is not spelled out in the words of the Constitution, it is implied from the system of government that the constitution declares – one of representative government.
The Constitutionally Implied Freedom of Political Communication does not provide an unfettered immunity. That is, not all laws that purport to limit freedom of political communication will be struck down. However, the High Court has set down clear conditions for determining whether any fetter will be deemed lawful. There are three conditions: the law must be reasonable, it must be adapted and it must be to a legitimate end.
In McIntyre’s case the High Court might well deem the SBS policies as reasonable and it may even determine them to be adapted (to the extent that there might be a risk in permitting an employee to tweet remarks where his role as an employee speaking on behalf of the employer runs the risk of conflating the two roles so that a reader may be ambiguously understanding his personal private tweets as being spoken on behalf of the employer, thus bringing the employer into disrepute).
But would the High Court be satisfied at the third criteria, that the fetter is to a legitimate end?
Is it a legitimate end to create classes of persons who are effectively locked out of the political process? Are we to say that in Australia, in a representative system of government, there will be certain classes of persons who will not be permitted to participate in their own representative government processes?
For where one person in a class of persons such as journalists or public servants is deprived of the freedom to participate in political communication, it necessarily follows that every person in that class of persons will be deprived of it. To deprive one public servant of the freedom of political communication is to deprive all public servants. To deprive one journalist the freedom to criticise government as a private citizen, is to deprive all journalists of that freedom of political communication.
I am not sure that the High Court would like us to embark on such a very slippery slope whereby there is no foreseeable end to the classes of persons who may, at the stroke of a pen or at the stroke of someone’s whim, be deprived of the freedom of political communication, begging the question “Which other class of persons is to be deprived next? Soldiers? Teachers? Nurses? Builders? Shopkeepers? Political advisers?”
In my opinion I say that if McIntyre was speaking as a private citizen, in his own time, using his own social media device he satisfies the pre-condition for the constitutional immunity. To the extent that SBS might have failed to consider the implied freedom when making its decision to sack him, the employer has failed to make a good valid decision under administrative law by not taking into account an essential and relevant consideration – the resulting decision being flawed and legally wrong.
If McIntyre was tweeting as a private citizen, in his own time using his own equipment, then I would expect him to be protected from punishment by the Constitutionally Implied Freedom of Political Communication.